Blog Comments & Posts

I would add that in the US, even in an informal approach to a web site owner, rights owners have to be EXTREMELY careful about how a takedown request is made, because there are sanctions and money damages available under DMCA section 512(f) against the alleged rights owner, if a takedown request is made and it turns out to be unfounded. Most takedown letters being circulated on the web are not valid takedown letters under the DMCA, so this is "DIY" at your own peril. If a rights owner uses eBay's NOCI online complaint system it is just as possible to get things wrong, as right. I have a client who was threatened with a 512(f) lawsuit because he didn't properly understand a copyright doctrine when he filed his eBay NOCI. I wrote an article about the 512(f) problem (available on arborlaw.biz). The case I refer to is the Diebold case (can be found here) and the damages asssessed against Diebold for improperly using the takedown procedure were $100,000.@cbhadley, improper trademark use can be attacked in the US in a few instances. Google will allow trademark owners to complain about their trademarks being used as Adwords keywords (here). Many domain registrars and hosts have a policy to shut down registrations which contain trademarks in the domain names (GoDaddy transfers the name over to SPAM_AND_ABUSE.NAMESERVER.XXX upon validation of the accusation, for example).

It gets much trickier when one content provider is masquerading as another but not actually using the trademark -- this might or might not be something that an OSP will remove content for under a hosting or registration agreement -- usually not. Google will not do anything about search engine results which point to content which infringes trademarks -- they will only act in connection with sponsored advertising that commits trademark infringement or false advertising in the sponsored ad copy. But Sarah has it right when she says it is absolutely not a DMCA violation and a DMCA letter should not be used for trademark issues. And once you are dealing with a content provider outside of the US all bets are off.